Saturday, December 6, 2008

On Thursday, a federal judge ruled against the National Rifle Association in its suit against the City of Chicago and the Village of Oak Park to invalidate those municipalities' gun bans.

In his opinion, Senior U.S. District judge Milton Shadur explained that he was bound by precedent that the Second Amendment applies only against the federal government, and not against states or their political subdivisions:

In this instance our Court of Appeals has squarely upheld the constitutionality of a ban on handguns a quarter century ago in Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982). And in reaching that conclusion, Quilici, id. at 269 relied on the Supreme Court's decision in Presser v. Illinois,116 U.S. 252, 265 (1886):

It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that" (t)he Second Amendment declares that it shall not be infringed, but this...means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government...."

In doing so, Quilici, id. at 270 rejected arguments (1) that later Supreme Court decisions that had incorporated other Bill of Rights provisions into the Fourteenth Amendment had effectively overruled Presser and (2) that the entire Bill of Rights had been implicitly incorporated into the Fourteenth Amendment to apply to the states....In sum, this Court--duty bound as it is to adhere to the holding in Quilici, rather than accepting plaintiffs' invitation to "overrule" it (!) --declines to rule that the Second Amendment is incorporated into the Fourteenth Amendment so as to be applicable to the Chicago or Oak Park ordinances.

Judge Shadur's ruling is not that surprising, given that as a U.S. District Court judge in the Seventh Circuit he was bound by the Quillici precedent. One of the key goals of the Chicago litigation is to challenge that precedent, and get either a Seventh Circuit or (ultimately) a Supreme Court ruling that the Second Amendment applies to the states.

So I fully expect the NRA to appeal the decision to the Seventh Circuit Court of Appeals, which has federal jurisdiction over Chicago. The Seventh Circuit can, if so inclined, overturn its own quarter century old Quillici precedent, and hold that the Second Amendment does in fact apply to the states and its political subdivisions. If the Seventh Circuit reaffirms the Quillici holding, then NRA will likely petition the Supremes to address the incorporation issue and overrule the Seventh Circuit. If the Seventh Circuit does overrule Quillici, however, then the high court will likely only get involved if Chicago decides to petition the Supremes to reverse the Seventh Circuit.